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Mpumalanga Tourism and Parks Agency and others v Barberton Mines (Pty) Ltd and others

14 March 2017

Constitutional Court 

Case No. CCT84/17

Date: 3 August 2017

On 3 August 2017, the Constitutional Court refused an application for leave to appeal by Barberton Mines (Pty) Ltd. The Supreme Court of Appeal’s order therefore stands.

Supreme Court of Appeal 

Case no. 216/2016

Date: 14 March 2017

Judge: Ponnan JA (Tshiqi, Majiedt, Dambuza and van der Mwerw JJA)

In this matter, Barberton Mines (Pty) Ltd (BM) sought an order from the High Court interdicting the the Mpumalanga Tourism and Parks Agency (MTPA) from stopping them from entering into and conducting prospecting operations in the Bartberton Nature Reserve in Mpumalanga. BM had obtained a prospecting right in terms of the Mineral and Petroleum Resources Development Act, 2002 from the Department of Mineral Resources authorising it to conduct mining in the Barberton Nature Reserve. However, in terms of the National Environmental Management: Protected Areas Act, 2003 (NEMPAA), no one may conduct commercial prospecting in a nature reserve. The MTPA therefore refused BM access to the Barberton Nature Reserve.

BM argued that the Barberton Nature Reserve was never properly established and that it therefore cannot be classified as a “nature reserve” as contemplated in NEMPAA. The Court, however, found against BM: the Barberton Nature Reserve was indeed legally established and therefore qualified for protection from commercial prospecting under NEMPAA. BM’s interdict application therefore failed.

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High Court of the Republic of South Africa, Gauteng Division, Pretoria

Case no. 43125/13

Date: 28 October 2015

Judge: Baqwa J

In the High Court, BM was successful and its interdict application was granted. The Court was of the opinion that the Barberton Nature Reserve was not properly established and that it did not qualify for protection under NEMPAA.

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Section 24 of the Constitution of the Republic of South Africa, 1996

Everyone has the right to an environment that is not harmful to their health or well-being; and to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

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